Introduction
1. By a judgment delivered on 16th September, 2024 in Iten MCELC MISC/E001 of 2022 the trial court (Hon. V. Karanja) entered judgment in favour of the defendants (now respondents) in the following terms:-
“...the defendants (plaintiffs in the counterclaim) have proved adverse possession for 1 acre of the suit land....I do enter judgment in their favour as against the plaintiff (defendant in the counterclaim) and grant orders (a), (b), (c), (d), (e) and (f) of the counterclaim.”
2. Dissatisfied with the judgment of the trial court, the plaintiff (now appellant) filed an appeal to this court.
3. The plaintiff/appellant also filed a notice of motion dated 6th October 2024, seeking stay of execution of the judgment and the orders made pursuant thereto pending hearing and determination of the application and the appeal. The plaintiff/ appellant also seeks an order restraining the respondents by themselves, their servants and/or representatives from erecting structures in the suit property and/or in any other manner whatsoever, interferring with the suit property pending the hearing and determination of the application and the appeal.
4. As can be discerned from the grounds on the face of the application and the affidavits sworn in support of the application (supporting and supplementary), the application is premised on the grounds that the appeal is arguable and has high chances of success because Magistrate Courts have no jurisdiction to hear and determines disputes touching on adverse possession like the dispute forming the subject matter of this appeal; that unless the orders sought are granted, the respondents may execute the judgment/decree issued in their favour thereby occasioning him irreparable damage and rendering the appeal nugatory; that the application has been made without unreasonable delay and that it is in the interest of equity and justice that the orders sought be granted.
5. In reply and opposition to the application, the respondents filed the replying affidavit of Nimrod Kiptoo Kimtai (2nd respondent) through which they inter alia contend that the application is an afterthought, brought in bad faith, incompetent and an abuse of the court process. In that regard, the respondents have deponed that after judgment was delivered, they held a meeting with the appellant in which meeting the appellant agreed that he was satisfied with the judgment and said that he wanted to settle in his land portion as per the judgment of the court; that they began executing the judgment of the court by jointly sourcing for services of a surveyor who demarcated the suit property as per the judgment appealed from.
6. Contending that the appellant has not substantially established grounds to warrant grant of the orders sought, the respondents urge the court to dismiss the application with costs to them.
7. In a rejoinder, the appellant/applicant filed the supplementary affidavit he swore on 28th January, 2025 denying the allegation contained in the replying affidavit concerning his involvement in execution of the judgment of the court and reiterating his contention that the appeal is arguable and with high chances of success on the ground that a Magistrate’s Court lacks jurisdiction to hear and determine disputes relating or based on the doctrine of adverse possession.
8. The application was disposed off by way of written submissions.
Applellant/Applicant’s submissions
9. In his submissions filed on 3rd March 2025, the appellant/applicant maintains that his appeal is arguable and that unless the orders sought are granted, he may incur substantial loss in that the respondents may deal with the suit property in a manner prejudicial to his interest in the suit property in the event he succeeds in the appeal thereby rendering the appeal nugatory.
10. The respondent did not file submissions within the time ordered by the court and at all.
Analysis and determination
11. The instant application being one for stay pending appeal, for the applicant to be granted the orders sought, particularly the order for stay of execution pending hearing and determination of the appeal, he must satisfy the court that he has met the conditions for stay pending appeal set out in Order 42 Rule 6 subrule 2 of the Civil Procedure Rules. These are:-
a) Substantial loss may result to the applicants unless the order is made;
b) That the application has been made without
unreasonable delay; and
c) The applicant has given such security as the court
orders for the due performance of such decree or order as may ultimately be binding on him.
12. As to whether the applicant has met those conditions, other than contending that his appeal is arguable and has high chances of success and that unless the orders sought are granted he stands to suffer irrepable loss, the applicant has not demonstrated what irreparable loss he stands to suffer.
13. It is not enough for a party to claim or contend that unless stay is granted they stand to suffer irreparable loss. An applicant claiming that he stands to suffer irreparable loss must demonstrate existence of circumstances upon which the court can determine that unless stay is granted, the applicant may suffer irreparable loss. In the circumstances of this case/application, where the trial court determined that it is the respondents who were in use and possession of the portion of the suit property, the applicant needed to provide the court with existence of circumstances warranting a finding that unless stay of execution is granted, the applicant may indeed suffer irreparable loss or damage. The argument that the applicant has an arguable appeal, cannot replace the obligation imposed on the applicant of proving that unless stay is granted he may suffer substantial loss.
14. In the circumstances of this case, I find and hold that the applicant has not discharged the burden imposed on him of proving that unless stay is granted, he may otherwise suffer irreparable loss/damage.
15. I also note that the applicant has neither provided security for performance of such obligation as may ultimately be binding on him as by law required. He has not expressed willing to furnish security. That being the case, I find and hold that the applicant has not made up a case for being granted the orders sought.
16. Consequently, I find the notice of motion dated 6th October, 2024 lacking in merits and dismiss it with costs to the respondents.
17. Orders accordingly.
Dated, signed and delivered this 4th day of April, 2025
Ruling delivered Virtually in the presence of:
- Mr. Allan Mulema for the applicant/Appellant.
- Mr. T. Cheruiyot for the Respondents.
- Ian – Court Assistant.